Pregelj and Wurramura v Manison

Facts

• A police constable passed in an adjacent laneway
• He noticed through a bedroom window (without curtains) a white mail and an Aboriginal female, both naked, going through the motions of sexual intercourse.
• He was a bit annoyed and reported the couple to his police colleagues

Facts contd.

• Couples were charged with offensive behaviour under s 47(a) Summary offences Act (1978) (NT)
• Appellants claimed they did not think their activity could be seen from the street
• Magistrate found them guilty
• Judge of Northern Territory Supreme Court upheld the verdict
• Appellants appealed

Relevant Issues: Mens rea

• meaning and application of mens rea at common law in relation to offensive behaviour
• whether intention is a necessary element of the offence of offensive behaviour

Applicable Statutes

• s 47 Summary Offences Act (1987) (NT) : A person who is guilty of an offensive behaviour 'in or within the view of any person in any ... public place' is guilty of an offence.
• s 31 criminal code (NT): Excuses a person form criminal responsibility for an 'act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct'

Applicable statute contd

• s 23 Criminal Code (NT): A person will not be guilty of an offence if 'any act or omission or event constituting that offence was done, made, caused by him, was authorized, justified or excused
• s 26 Criminal code (NT): An act or omission is 'authorized' if it was done in the exercise of a right granted or recognized by law.

Reasoning (Nader J)

• considering the decision of Brennan J in Hey Kaw Teh's case, mens rea is an essential element in every statutory offence and 'offensive behaviour' unless, having regard to the language and subject matter, mens rea is excluded either expressly or by necessary implication
• there is a presumption that statute does not impose criminal liability without mens rea

Reasoning (NADER J)

• he believes if an ordinary person was asked whether it would be just to convict and punish for offensive behaviour someone who was unaware that his conduct could be seen by a person in a public place, the answer would unhesitatingly be in the negative
• the essence of 'offensive behaviour' is the offending of another person and such offending must be intended

REASONING (NADER J)

• Since the act of offending a person is integral to the proscribed conduct of 'offensive behaviour', then by virtue of s 31 Criminal Code (NT), the offender is excluded from criminal liability unless offending was intended or foreseen by him as a possible consequence of his conduct

Reasoning Rice j

• sexual intercourse between adults is normal behaviour ordained by society as natural and lawful
• it is a right recognized by law, therefore, appellant behaviour, without intent, is authorized and lawful
• Not intent of legislature to render it an offensive behaviour
• justice should not be denied to the immodest

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